REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLLATE JURISDICTION
CRIMINAL APPEAL NO.1987 OF 2012
(ARISING OUT OF SLP(CRL.) NO.2025 OF 2012)
SASIKUMAR & ANR. APPELLANTS
VERSUS
STATE OF KERALA RESPONDENT
J U D G M E N T
Aftab Alam, J.
1. Leave granted.
2. The two appellants (who are accused Nos.2 & 3), along with one
Narayanan (accused No.1) have been convicted under Section 8(1) read
with 8(2) of the (Kerala) Abkari Act.
They were sentenced by the
trial court to rigorous imprisonment for three years and a fine of
Rs.1,00,000/- with the default sentence of one year rigorous
imprisonment.
In appeal the High Court, though maintaining the
conviction, reduced the sentence to rigorous imprisonment for 18
months and the default sentence for failure to pay the fine, to
rigorous imprisonment for a period of six months. The High Court also
directed that the accused would be entitled to get the benefit of set
off under Section 428 of the Code of Criminal Procedure.
3. According to the prosecution case, on March 12, 2005 at about 11:15
AM the accused were seen coming in an auto-rickshaw bearing
registration No.KL-03-F-3146. The auto-rickshaw belonged to and it
was being driven by appellant No.2. On seeing the police party, all
the three occupants ran away leaving the auto-rickshaw at the spot.
On its inspection, the police found two (2) 20 litres cans containing
40 litres of arrack lying inside the auto-rickshaw and, thus,
according to the police, the accused had committed the offence under
Section 8(1) of the Abkari Act.
4. The three accused were tried by the Court of the Additional
District and Sessions Judge (Ad-hoc) Fast Track Court-I,
Pathanamthitta who, by his judgment and order dated June 22, 2010 in
Sessions Case No.682/2006 convicted and sentenced them, as noted
above.
5. The three accused came to the High Court in two separate appeals,
being Criminal Appeal No.1338 of 2010 preferred by the two appellants
before this Court and Criminal Appeal No.2198 of 2010 submitted to the
High Court as jail appeal on behalf of accused No.1 Narayanan. The
High Court disposed of both the appeals by judgment and order dated
August 4, 2011. It maintained their conviction but modified and
reduced their sentence, as noted above.
6. The accused No.1 Narayanan apparently accepted the judgment of the
High Court and has not preferred any special leave petition against
the High Court judgment. The other two accused, i.e., the appellants
are before this Court in the present appeal.
7. We have heard Mr. R. Basant, learned counsel for the appellants and
we have gone through the materials on record. We find that both the
trial court and the High Court have meticulously considered the
evidences led by the prosecution and have rightly arrived at the
conclusion in regard to the appellants’ guilt. Insofar as the
conviction of the appellants under Section 8(1) of the Abkari Act is
concerned, there is no scope for any interference and we uphold the
conviction of the appellants as recorded by the trial court and
affirmed by the High Court.
8. Mr. Basant, however, urged before us to take a lenient view in
regard to the sentence awarded to the appellants.
9. On the question of sentence, the High Court in paragraph 19 of its
judgment has made the following observations:-
“It is relevant to note that at the time of registration of the
crime, first accused was at the age of 57 and accused Nos.2 and
3 were at the age of 42 and 48 respectively. Now six years are
over. Therefore, first accused will be at the age of 63, second
accused at the age of 48 and third accused at the age of 54.
The prosecution has no case that the accused are habitual
offenders. Having regard to the above facts and the mitigating
circumstances, I am of the view that the substantial sentence
imposed against the accused requires reconsideration. Thus,
according to me, 18 months rigorous imprisonment will be
sufficient to meet the ends of justice. While confirming the
sentence of fine, the default sentence can be reduced to six
months. In the result, in modification of sentence imposed by
the trial court, the accused are sentenced to undergo rigorous
imprisonment for 18 months each and to pay fine of Rs.1 lakh
each and in default, each of them is directed to undergo simple
imprisonment for a period of six months instead of one year
rigorous imprisonment ordered by the trial court. The
appellants are entitled to get the benefit of set off under
Section 428 of Cr.P.C.”
10. We agree with the view taken by the High Court.
11. We would like to further observe that from the facts of the
case it is evident that the appellants and the other accused in this
case are not the real men behind the nefarious trade of illicit
intoxicants in the State. From the quantity seized from the
possession of the accused and the manner in which it was being
carried, it is evident that the three accused were only small time
operators in the illicit trade of arrack and though visible, they
constitute the weakest link in the chain of illicit trade in arrack.
In those circumstances, we think a further reduction of the sentence
would be quite in order. We, accordingly, reduce the sentence of
imprisonment from 18 months, as awarded by the High Court, to one year
and further reduce the sentence in default of payment of fine from six
months to fifteen days.
12. Accused No.1, Narayanan is not before this Court presumably
on account of poverty, as his appeal to the High Court was also a jail
appeal. We find there is no distinction between the case of the
appellants and the case of accused No. 1 and, accordingly, extend the
relief granted to the two appellants to accused No.1 Narayanan as
well.
13. Before parting with the record of the case, we would like
to point out that
Section 8(2) of the Abkari Act does not fix any
upper limit for the fine but lays down that the fine shall not be less
than Rs.1,00,000/-.
Since the minimum amount of fine prescribed by
the law is kept so high, the courts naturally give the default
sentence of imprisonment for a substantially longer period.
As noted
above, the trial court has given the default sentence of one year
which was reduced by the High Court to six months. We may note that in
cases where poor people like the appellants who may only be the
carrier of the arrack or who may be trying to eke out a living from
the illegal trade are caught committing the offence, they are hardly
in position to pay the fine of Rs.1,00,000/- and for them the default
sentence becomes an additional period of incarceration.
In a way,
fixing the minimum fine at such a high amount, regardless of the
countless possible variables in the commission of the offence under
Section 8(1), leads to discrimination in favour of those convicts who
have sufficient means to pay the fine and, thus, avoid any default
imprisonment and the small fries for whom the default sentence would
invariably mean an additional sentence of imprisonment.
To our mind,
it is desirable to leave the Court free in exercise of judicial
discretion in the matter of imposition of fine.
14. In the light of the discussion made above, the appeal is
allowed to the limited extent, as directed above.
………………….....................J
(Aftab Alam)
.………………….....................J
(Ranjana Prakash Desai)
New Delhi,
December 4, 2012
